State v. Gilmore, 65971

• Decision Date: 10 September 1985
• Docket Number: No. 65971,65971
• Citation: 697 S.W.2d 172
• Parties: STATE of Missouri, Plaintiff-Respondent, v. George C. GILMORE, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 172

697 S.W.2d 172

STATE of Missouri, Plaintiff-Respondent, v. George C. GILMORE, Defendant-Appellant.

No. 65971.

Supreme Court of Missouri En Banc.

Sept. 10, 1985.

Rehearing Denied Oct. 16, 1985.

Henry Robertson, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., George Cox, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HIGGINS, Chief Justice.

George Clifton Gilmore was convicted by a jury of capital murder, section 565.001, RSMo 1978, and sentenced to death, section 565.032, RSMo Cum.Supp.1984. Judgment was rendered accordingly. This is the second appeal to this Court, a previous conviction having been reversed for a defect in the indictment. State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983). Appellant charges the trial court erred in: (1) refusing to allow defense counsel to withdraw and substitute new counsel; (2) permitting defendant to represent himself without a knowing and intelligent waiver; (3) sustaining the state's challenges for cause of three veniremen even though they did not state unequivocally that they would vote against the death penalty; (4) permitting death qualification voir dire questions; (5) refusing to suppress evidence as products of a warrantless arrest; (6) submitting certain aggravating circumstances unsupported by the evidence; and (7) excessive punishment. Affirmed.

A brief summary of the facts will suffice. ¹ Defendant, his brother Norman, and Leonard Laws decided to rob Clarence and Lottie Williams. They went to the Williams' home with intent to get money, ransacked it and took several items and some one hundred and fifty dollars in money. Defendant then shot Mr. and Mrs. Williams with a twelve gauge shotgun. Two relatives of the defendant learned of the murders and reported the incident to the police. The two relatives agreed to help apprehend the three perpetrators. They tricked defendant and Leonard Laws into leaving their trailer and the two were arrested at a police roadblock. Norman Gilmore was arrested at a house in Franklin County, Missouri.

Norman Gilmore agreed to plead guilty to reduced charges in exchange for his testimony against Leonard Laws and defendant. Defendant subsequently admitted shooting Clarence and Lottie Williams.

Appellant contends that his pro se motion to remove his appointed counsel and to appoint new counsel should have been granted. His motion alleged that his attorney refused to investigate an alibi defense and intended to present false evidence at trial. Defendant followed this with a legal malpractice action against his attorney. Defendant's counsel filed a motion to withdraw based on conflict of interest.

To warrant substitution of counsel, the defendant must show "justifiable dissatisfaction" with his appointed counsel. State v. Olinghouse, 605 S.W.2d 58, 70 (Mo. banc 1980), citing United States v. Hart, 557 F.2d 162 (8th Cir.1977), cert. denied, 434 U.S. 906, 98 S.Ct. 305, 54 L.Ed.2d 193 (1977). Refusing to present a proposed alibi defense does not constitute "justifiable dissatisfaction" because determination of what witnesses to call is a matter of trial strategy and the decision is best left to counsel. State v. Turner, 623 S.W.2d 4, 11 (Mo. banc 1981). Counsel had no duty to call witnesses in this situation. The record shows that counsel investigated the alibi defense. The record further shows that defendant admitted presence at the scene of the crime in a videotaped confession to the police and in testimony at his first trial. There was also testimony of defendant's relatives and friends. The attorney was under an absolute obligation not to present perjured testimony in support of her client. Bennett v. State, 549 S.W.2d 585, 587 (Mo.App.1977) (citing cases).

Appellant contends he should not have been allowed to defend himself because he did not effectively waive his right to counsel. A defendant has a constitutional right under the Sixth Amendment to represent himself, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); assertion of this right is conditioned on a knowing and intelligent waiver of the right to counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). It is the duty of the trial judge initially to determine whether a knowing and intelligent waiver has been made, and the judge must investigate "as long and as thoroughly as the circumstances of the case before him demand." Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323-24, 92 L.Ed. 309 (1948).

Defendant told the trial judge that he had been involved in three previous trial proceedings, that it was in his best interest to represent himself, and that he was aware of his right to have an attorney. He stated that his waiver was voluntary and of his own free will and that no threats or promises were made. He was not under the influence of alcohol and had never been treated for a mental illness. The judge expressly told defendant that it was not in his best interest to represent himself. He also told defendant that his appointed counsel was a "fine and skillful attorney" and that defendant would be making a "substantial and serious mistake" if he discharged her. In addition, defendant signed a waiver memorandum as required under section 600.051, RSMo 1978.

Appellant argues that this was insufficient to support a waiver of counsel. This Court disagrees because the evidence shows that the trial judge correctly determined that the defendant was adequately informed and made an advised and intelligent waiver of counsel. This Court is in agreement with decisions holding that the defendant's knowledge of all relevant facts need not appear on the trial record and that the court may properly consider the defendant's background, experience and conduct and such factors as involvement in previous criminal trials and representation by counsel before trial. See Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976).

Appellant contends that the trial court should not have sustained the State's challenges for cause of three veniremen because their answers on voir dire did not show unequivocally that they would vote against the death penalty. In addition, he asserts that the trial judge should not have permitted death qualification voir dire questions because by eliminating jurors who opposed capital punishment, the result was a jury partial to the state. ² This Court dealt with these issues in the recent case of State v. Malone, 694 S.W.2d 723 (Mo. banc 1985). In Malone, this Court declined to depart from the line of Missouri cases following current United States Supreme Court cases holding that the state may constitutionally exclude jurors who cannot consider death as a possible punishment. Id. at 727. The answers of prospective jurors do not have to be unequivocal in order for the jurors to be excluded. The current standard of the United States Supreme Court is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath." Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Appellant claims that the trial court should have suppressed the physical evidence seized from the defendant at the time of his arrest and the videotaped statement subsequently taken from him as products of a warrantless arrest. The two relatives who informed the police of defendant's part in the crime told the police that defendant had stated that he would not be taken alive. Out of consideration for the safety of the two women and eleven children who lived in the trailer with defendant and Laws, the police wanted to wait and arrest defendant after he left the trailer. The informants, in cooperation with the police, told defendant and Laws that they knew of an elderly person with a great deal of money. The four individuals left the trailer intending to commit a murder and robbery and defendant was arrested following a chase.

The appellant relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), in which the court held that the police cannot make a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. The appellant also cites United States v. Morgan, 743 F.3d 1158 (6th Cir.1984), in which the police followed the defendant home, called him out and then arrested him and searched the house without a warrant. The court in Morgan held that this was an arrest in the home and there were no exigent circumstances to justify the warrantless entry and search. Id. at 1168.

The facts of Gilmore's arrest are easily distinguishable. The defendant and Laws left their home voluntarily with the purpose of committing another crime. The police were justified in waiting to arrest defendant. There is no constitutional right to be arrested at the moment there is probable cause. United States v. Davis, 646 F.2d 1298 (8th Cir.1981), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981). Furthermore, physical entry of the home is what is protected by the Fourth Amendment. Payton, 445 U.S. at 585, 100 S.Ct. at 1379. Defendant was arrested in his car. For Fourth Amendment purposes, a home is accorded wholly different treatment than is an automobile. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Appellant alleges there was insufficient evidence to support two of the three aggravating circumstances submitted to the jury. Appellant admits there is authority for the aggravating circumstance "purpose of receiving money." State v. McDonald, 661 S.W.2d 497 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). Where two or more statutory aggravating circumstances are found by the jury, failure of one circumstance does not invalidate the other. State v. LaRette, 648 S.W.2d 96, 102 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246, reh. denied, 464 U.S. 1004, 104 S.Ct. 515, ...